Last Updated: August 15, 2023

Invoking Spousal Testimonial Privilege in Utah

Utah’s spousal testimonial privilege is a legal protection that allows one spouse to refuse to testify against the other spouse in a criminal case. Article I Section 12 of the Utah Constitution specifically provides, “a person shall not be compelled to testify against the person’s spouse” in a criminal case.…

Utah’s spousal testimonial privilege is a legal protection that allows one spouse to refuse to testify against the other spouse in a criminal case. Article I Section 12 of the Utah Constitution specifically provides, “a person shall not be compelled to testify against the person’s spouse” in a criminal case.

How do I invoke spousal privilege?

There are no “magic words” that must be used when invoking spousal privilege. However, using the term “spousal privilege” can help clarify your intent when speaking with a prosecutor, judge, police officer, or victim advocate.

A good example is, “I am invoking my spousal privilege under the Utah Constitution and will refuse to testify against my spouse in any criminal proceedings.”

Do I need an attorney in order to invoke spousal privilege?

No, but having good, independent legal advice and information is always a good idea. A quick consultation with an experienced attorney can often give you all of the information you need to successfully invoke your spousal privilege.

Will a prosecutor or victim advocate tell me about spousal privilege?

Usually, a prosecutor or victim advocate will not tell you about spousal privilege. The prosecutor does not represent you, even though you may be the victim. Similarly, the “victim advocate” is not your legal representative in the case.

A victim advocate is usually a non-attorney employed by the office of the prosecutor or by the police to facilitate communication with victims. As such, a victim advocate normally should not give legal advice.

What if I tell the prosecutor I don’t want to testify?

In everyday conversation, telling someone that you “don’t want to” do something should normally be enough. But when lawyers are involved, precision in language is important.

If you tell a prosecutor that you do not want to testify, the prosecutor may still send you a subpoena and may still ask you to take the stand as a witness at trial.

A person may not “want” to get out of bed on a Monday morning, or may not “want” to eat their Brussels sprouts, but may still go ahead and do so.

If you do not “want” to testify against your spouse, telling the prosecutor that you are “invoking spousal privilege” can help clarify what you mean.

What if I get a subpoena in the mail?

Formal service of a subpoena requires that the party serving the subpoena follow certain procedures. Normally, sending a subpoena through regular mail or sending a pdf copy of the subpoena by email will not constitute formal service and will not require you to comply with the subpoena’s instructions.

Even so, before ignoring a subpoena that you have received, consultation with an experienced attorney is strongly advised.

What if the subpoena is formally served on me?

A subpoena that is formally served on you has the force and effect of a court order. If you ignore the subpoena, you may be subject to penalties including contempt of court.

If I go to court, do I have to testify?

Even though the subpoena can require you to come to court, the subpoena cannot be used to compel you to testify against your spouse in the criminal case. If you do not want to testify against your spouse, it can be helpful to tell both the defense attorney and the prosecutor that you are invoking spousal privilege when you arrive at the courthouse .

If I invoke spousal privilege, will the case against my spouse be dismissed?

The effect of invoking spousal privilege can depend on what other evidence is available to the prosecutor in the case.

If the police obtained a confession from your spouse or if there are other independent witnesses to the events involved, that evidence can still be used at trial.

But if the only evidence in the case is the testimony of the invoking spouse, the prosecutor may be left with nothing on which to move forward.

What should I do?

Each case is different. Talking with an independent attorney who will represent your interests will help you understand your rights, your options, and what the likely outcome of your decisions may be.

Originally Published: August 15, 2023

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